Williams v. Litton Loan Servicing
| Decision Date | 15 August 2011 |
| Docket Number | C.A. No. 10-11866-MLW |
| Parties | FLOYD A. WILLIAMS, Plaintiff, v. LITTON LOAN SERVICING, POPULAR MORTGAGE SERVICING, INC., and EQUITY ONE, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
WOLF, D.J.
On October 5, 2010, plaintiff Floyd Williams ("Williams") filed a five-count complaint in Suffolk Superior Court against defendants Litton Loan Servicing ("Litton"), Popular Mortgage Servicing, Inc. ("Popular"), and Equity One. On November 1, 2010, Litton timely removed this case pursuant to 28 U.S.C. §§1441 and 1446. Neither Popular nor Equity One has been served by Williams. Litton now is moving to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons described below, Litton's motion to dismiss is being allowed concerning Williams's federal claims and denied without prejudice concerning Williams's state law claims, which are being remanded.
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "take all factual allegations as true and . . . draw all reasonable inferences in favor of theplaintiff." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007); see also Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009). A motion to dismiss should be denied if a plaintiff has shown "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).
A complaint must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This pleading standard does not require "detailed factual allegations," but does require "more than labels and conclusions . . . and a formulaic recitation of the elements of a cause of action will not do . . . ." Twombly, 550 U.S. at 555; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009) (). A court may disregard "bald assertions, unsupportable conclusions, and opprobrious epithets." In re Citigroup, Inc., 535 F.3d 45, 52 (1st Cir. 2008). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id.(quoting Twombly, 550 U.S. at 557).
In considering Litton's motion to dismiss, the court takes as true all factual allegations in the complaint and draws all reasonable inferences in Williams's favor. See Rodriguez-Ortiz, 490 F.3d at 96.
On September 23, 2003, Equity One issued to Williams a $433,500 loan secured by a mortgage on property located at 490 Columbia Road, Dorchester, Massachusetts. The mortgage agreement included a clause entitling Equity One to collect payments for property taxes from Williams. If Equity One waived its right to do so, Williams was responsible for paying any such taxes directly. If Williams failed to make timely payments, Equity One could make the payments and recover from Williams.
Equity One waived its right to collect tax payments from Williams, and Williams began making those payments directly to the City of Boston. However, on November 4, 2004, Equity One learned from the City of Boston that Williams had defaulted on his tax payments. Equity One paid the balance and charged Williams for the amount paid, interest, servicing costs, and late fees. A portion of Williams's subsequent mortgage payments was applied by Equity One to those charges. However, Williams also renewed his tax payments, causing the City of Boston to be overpaid.
Williams never pursued a refund from the City of Boston but,in December, 2005, brought the property tax overpayment to the attention of Popular, the original servicer of his loan. Popular took no action and, in October, 2008, transferred Williams's loan to Litton. On November 25, 2008, Litton mailed Williams a "Validation of Debt Notice" stating that Williams owed $429,557.72. The chronology laid out in the complaint and accompanying documents is unclear, but it appears that Williams mailed Litton a dispute letter on November 25, 2008, and then again on January 6, 2009. (The dates of those letters also may have been December 2, 2008, and December 9, 2008.) Litton acknowledged receipt of at least one of those letters but, on either December 22, 2008, or January 21, 2009, mailed Williams a "Notice of Default and Intent to Accelerate." That notice informed Williams that his loan would be accelerated unless he paid $18,000 by March 9, 2009; in Williams's view, the notice "end[ed] negotations." Compl. at 2.
On February 20, 2009, Williams notified Litton that he intended to file a complaint. On February 23, 2009, Williams received a telephone call from Litton requesting that he postpone filing a complaint until Litton had an opportunity to resolve the disputed charges. On December 16, 2009, Litton notified Williams by letter that the disputed charges would not be removed from his account and that his escrow balance of $18,591.84 was due.
Williams has asserted two federal claims and three state law claims against Litton. The federal claims allege violations of theFair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§1692 et seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§2601 et seq. The state law claims allege breach of contract, breach of implied covenant of good faith and fair dealing, and violation of Chapter 93A. Both of Williams's federal claims are being dismissed. Accordingly, Williams's three state law claims are being remanded for lack of jurisdiction.
1. The FDCPA Claim
Williams's FDCPA claim is time barred. Pursuant to the FDCPA, if a consumer notifies a debt collector in writing that a debt is disputed, the debt collector must cease collection of the debt until verification of the debt is mailed to the consumer. See 15 U.S.C. §1692g(b). Any action to enforce a debt collector's liability for violating the FDCPA must be brought "within one year from the date on which the violation occurs." 15 U.S.C. §1692k(d); see also Harrington v. CACV of Colorado, LLC, 508 F. Supp. 2d 128, 131-32 (D. Mass. 2007).
Williams alleges that Litton violated the FDCPA by failing to cease collection after receiving his letters disputing his debt. As noted above, those letters were mailed either November 25, 2008, and January 6, 2009, or December 2, 2008, and December 9, 2008. On either December 22, 2008, or January 21, 2009, Litton mailed Williams a "Notice of Default and Intent to Accelerate," informing him that his loan would be accelerated unless he paid $18,000. Evenassuming that this notice constituted a violation of the FDCPA, Williams had until January 21, 2010, at the latest, to file this action. Because he delayed until October 5, 2010, his FDCPA claim is time-barred. Accordingly, it must be dismissed. See Oyegbola v. Advantage Assets, Inc., No. 09-cv-10418-NG, 2009 WL 4738074, at *4 (D. Mass. Dec. 7, 2009) (); Crooker v. Wachovia Bank, N.A., No. 08-10227-RGS, 2008 WL 2066943, at *1 (D. Mass. May 14, 2008) (same).
That Williams postponed filing suit upon Litton's request does not alter this conclusion. The circumstances in which equitable tolling of a statute of limitations are appropriate are extremely limited. See Wallace v. Kato, 549 U.S. 384, 396 (2007) (); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (); Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). "[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The general rule is that a showing of fraud or affirmative misrepresentation is required. See Irwin, 498 U.S. at 96; Gonzalez v. United States, 284 F.3d 281, 292 (1st Cir. 2002); Jensen v. Frank, 912 F.2d 517, 521 (1st Cir. 1990)(requiring "active misleading"); Oyegbola, 2009 WL 4738074, at *3 (); Jonker v. Kelly, 268 F. Supp. 2d 81, 86 (D. Mass. 2003). This rule is no different in FDCPA cases. See, e.g., Michaels v. NCO Fin. Sys., Inc., No. 10-207 Erie, 2011 WL 2600723, at *2 (W.D. Pa. June 29, 2011) (); Byrd v. Law Offices of John D. Clunk, Co., No. 1:09-cv-076, 2010 WL 816932, at *4 (S.D. Ohio Mar. 8, 2010) ().
Here, Williams cannot show either that he pursued his FDCPA claim diligently or that Litton engaged in fraudulent misrepresentation. As described above, Williams's claim accrued, at the latest, on January 21, 2009. On February 23, 2009, Litton requested that he postpone filing a complaint until Litton had an opportunity to resolve the disputed charges; Williams was under no obligation to acquiesce to Litton's request. On December 16, 2009, Litton notified Williams that the disputed charges would not be removed from his account. At that time, Williams still had over one month to file an FDCPA claim within the statute of limitations. He elected not to do so and, indeed,...
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